AUSTRALIA'S CONSTITUTION: The Governor-General is our head of state

by Sir David Smith

News Weekly, January 8, 2005

The case for Australia becoming a republic is almost invariably based on the argument that the Queen, as well as being our monarch or sovereign, is also our head of state, and that Australia needs to become a republic in order to have an Australian as its head of state. Yet there is a considerable body of constitutional and legal evidence that suggests that we already have an Australian head of state in the governor-general.

The Australian Constitution does not contain the words "head of state", nor was the term discussed during the constitutional debates which resulted in the drafting of the Constitution and its subsequent approval by the Australian people. In the absence of a specific provision in the Constitution, we need to see who actually performs the duties of head of state in order to determine who is the head of state.

These duties are performed by the governor-general, and by the governor-general only. The sovereign's only constitutional duty is to approve the Prime Minister's recommendation of the person to be appointed governor-general, or to approve the Prime Minister's recommendation to terminate the appointment of a governor-general. Although the governor-general is the Queen's representative for the purposes of exercising the royal prerogatives of the Crown in Australia, when he carries out his constitutional duties to exercise the executive power of the Commonwealth under Chapter II of the Constitution - "The Executive Government" - he does so in his own right and not as a delegate or surrogate of the Queen.

In 1985 the Hawke Government set up a Constitutional Commission charged with carrying out a review of Australia's Constitution. Three of its members were constitutional lawyers. The other two members were former heads of government - the Hon. Sir Rupert Hamer, former Liberal Premier of Victoria; and the Hon. E.G. Whitlam, former Labor Prime Minister of Australia. The Commission was assisted by an Advisory Committee on Executive Government under the chairmanship of former governor-general, Sir Zelman Cowen.

In 1988, in its final report, the Constitutional Commission said: "Although the governor-general is the Queen's representative in Australia, the governor-general is in no sense a delegate of the Queen. The independence of the office is highlighted by changes which have been made in recent years to the royal instruments relating to it." The changes to these instruments are discussed later in this article.

Independent status

One of the commission's terms of reference had asked it to report on the revision of our Constitution to "adequately reflect Australia's status as an independent nation." In its report, the commission traced the historical development of Australia's constitutional and legislative independence, and concluded: "It is clear from these events, and recognition by the world community, that at some time between 1926 and the end of World War II Australia had achieved full independence as a sovereign state of the world. The British Government ceased to have any responsibility in relation to matters coming within the area of responsibility of the Federal Government and Parliament." And the commission found that: "The development of Australian nationhood did not require any change to the Australian Constitution."

Thus did the 1988 Constitutional Commission report dispose of the two arguments that were to be used by republicans during the 1999 referendum campaign, namely, that the republic would give us an Australian Head of State and would give us our independence from Britain.

The claim that the governor-general is our head of state is not some bizarre theory dreamed up for the purposes of the republic debate in Australia. A Canadian governor-general, Lord Dufferin, described a governor-general as a constitutional head of state in a speech given in 1873.

Constitutional scholars such as Professor D.A. Low, formerly vice-chancellor of the Australian National University, president of Clare Hall, Cambridge, and Smuts Professor of the History of the British Commonwealth, Cambridge; Professor David Butler, Emeritus Fellow, Nuffield College, Oxford; Professor Brian Galligan, professor of political science at the University of Melbourne; and Professor Stuart Macintyre, the Ernest Scott professor of history at the University of Melbourne, and chairman of the Keating-appointed Civics Expert Group, have referred to the governor-general as a head of state, albeit on occasions prefixed by an adjective such as "constitutional" or "de facto".

Prime Minister Gough Whitlam considered Governor-General Sir John Kerr to be Australia's head of state, and ensured that when the governor-general travelled overseas in 1975 he did so as head of state and was acknowledged as such by four host countries.

The media refer to the governor-general as head of state. In 1977 the opening sentence of an editorial in the Canberra Times was: "We shall have today a new governor-general, Sir Zelman Cowen, as our head of state." After a speech by Mr Bill Hayden to the Royal Australasian College of Physicians in 1995, The Australian published it under the heading: "The governor-general has made one of the most controversial speeches ever delivered by an Australian head of state." The next day's editorial in the same newspaper said that "it is perfectly appropriate at this stage of our constitutional development that the head of state address important issues of social policy." In 1996 The Australian referred to the governor-general, Sir William Deane, as head of state, and soon such references became commonplace, and without the customary adjectives such as "de facto" or "virtual" or "effective".

By the time Dr Peter Hollingworth had succeeded Sir William Deane in 2001, any media coyness about referring to the governor-general as head of state had virtually disappeared, and scholarly commentators such as Richard McGarvie, formerly governor of Victoria and a judge of the Supreme Court of Victoria; and Professor George Winterton, professor of constitutional law at the University of New South Wales, referred to the governor-general as head of state.

Once Dr Hollingworth started facing the crisis which was to result in his resignation in 2003, the fact that he was the head of state was used to justify the criticism of him over events in the Anglican archdiocese during his time as archbishop of Brisbane, and became the basis for calls for him to resign. So much so that The Australian's editor-at-large, Paul Kelly, was able to ask: "have Australians decided not by formal referendum but by informal debate that the governor-general is our head of state? ... Take the media eruption of calling the governor-general head of state, pursued in the papers, the ABC and commercial media. Simon Crean [then Opposition leader] now refers to the office as the head of state."

A most significant contribution to the debate about who is the head of state was the sudden appearance in the Commonwealth Government Directory, in 1992, as part of a list of the governor-general's functions, of the following sentence: "He is the head of state in whom the executive power of the Commonwealth is vested." That description was used during Paul Keating's term as Prime Minister in 15 successive editions of the Commonwealth Government Directory over more than four years: it first appeared in the August 1992 edition and disappeared just as suddenly from the December 1996 edition, following the appointment of Daryl Williams as Attorney-General in the Howard Government.

Williams not only put an end to the governor-general being described in an official Commonwealth Government publication as the head of state: in January 1998, just before the February 1998 Constitutional Convention on the republic, he suddenly began a new practice of adding at the front of another Commonwealth Government publication - The Constitution - an "Overview" containing the following sentence: "Australia's head of state is Queen Elizabeth II."

Despite repeated written requests for information about the authority for this new assertion, Attorney-General Williams was not able to provide any supporting documentary evidence, nor any constitutional or legal justification for describing the sovereign as head of state. More to the point, he tried to justify this description simply by saying that it was "appropriate and proper", thus establishing a new bench-mark in constitutional interpretation! One can only speculate as to the probative value which the High Court would attach to such "evidence".

Legal evidence

But all this is only anecdotal evidence: of much more significance in determining this important question is the legal evidence for the view that the governor-general is our head of state.

During 1900 Queen Victoria signed a number of constitutional documents relating to the future Commonwealth of Australia, including letters patent constituting the office of governor-general, and instructions to the governor-general on the manner in which he was to perform certain of his constitutional duties.

Two distinguished Australian constitutional scholars, Andrew Inglis Clark, who had worked with Sir Samuel Griffith on his drafts of the Constitution, and who later became senior judge of the Supreme Court of Tasmania, and W. Harrison (later Sir Harrison) Moore, who had worked on the first draft of the Constitution that went to the 1897 Adelaide Convention, and who was professor of law at the University of Melbourne, expressed the view that the letters patent and the royal instructions were superfluous, or even of doubtful legality, on the grounds that the governor-general's position and authority stemmed from the Australian Constitution and that not even the sovereign could purport to re-create the office or direct the incumbent in the performance of his duties under that Constitution.

Inglis Clark pointed out that sections 2 and 61 of the Australian Constitution relating to the powers and functions of our governor-general were unique within the British Empire. They conferred upon our governor-general a statutory position which the Imperial Parliament had not conferred upon the governor-general or governor of any other part of the British Empire. Clarke noted that the powers and functions of every other governor or governor-general were conferred upon him by the letters patent which created the office which he held, and by the commission by which he was appointed to that office, whereas the office of governor-general of Australia was created by, and the incumbent derived his powers and functions from, the Constitution itself.

Clark specifically rejected any notion that section 2 placed any limit or control over the governor-general in the exercise of the executive power of the Commonwealth under the Constitution, as conferred on him, and on him alone, by section 61. Clark thought it difficult, so far as the Commonwealth of Australia was concerned, to reconcile the continued existence of an independent right in the Crown to create and constitute the office of governor-general by letters patent when the express provisions of the Constitution had already created the very same Office and had already given it its powers and functions.

That view was shared at the time by Harrison Moore, who pointed out that, while in all other colonies the prerogative powers were exercised by a governor under an authority committed to him by the Crown, in Australia they were placed in the hands of the governor-general by the Constitution. Furthermore, the sovereign could not detract from the governor-general's powers by any prerogative instrument, nor enlarge them by granting them over again by letters patent.

The matter of vice-regal appointments was raised again at the 1926 Imperial Conference. This time the prime ministers declared that the governor-general of a dominion was no longer to be the representative of His Majesty's government in Britain, and that it was no longer in accordance with a governor-general's constitutional position for him to remain as the formal channel of communication between the two governments. The conference further resolved that, henceforth, a governor-general would stand in the same constitutional relationship with his dominion government, and hold the same position in relation to the administration of public affairs in the dominion, as did the King with the British government and in relation to public affairs in Great Britain. It was also decided that a governor-general should be provided by his dominion government with copies of all important documents and should be kept as fully informed of cabinet business and public affairs in the dominion as was the King in Great Britain.

The 1926 Imperial Conference also made another decision which is of direct relevance to the contemporary debate in Australia. The prime ministers recognised that the sovereign would be unable to pay state visits on behalf of any Commonwealth country other than the United Kingdom, and it was agreed that governors-general of the various realms would pay and receive state visits in respect of their own countries. Buckingham Palace made it clear that it expected that governors-general would be treated as the heads of their respective countries and would be received by host countries with all the marks of respect due to a visiting head of state. Canada exercised this right almost immediately and its governors-general began visiting other countries the following year, 1927, but Australia waited until 1971, 44 years after Canada, to follow suit.

Early in 1930 Prime Minister J.H. Scullin was informed that the British government would welcome an Australian indication of a suitable successor to the governor-general. The cabinet considered the names of Sir Isaac Isaacs, then Chief Justice of the High Court of Australia, and General Sir John Monash, a distinguished engineer and soldier who had been Australia's highest-ranking soldier in the First World War. The choice fell on Isaacs, formerly a member of the Victorian Legislative Assembly and State Attorney-General; a member of the 1897-98 Constitutional Convention; a member of the House of Representatives and Commonwealth Attorney-General; a Justice of the High Court; and now Chief Justice.

Public controversy

News of cabinet's choice soon leaked out. Newspapers reported that King George V would not accept the recommendation. Amid a welter of public controversy, objections were voiced to the appointment of an Australian rather than someone from the United Kingdom; to the appointment of someone who had been involved in politics in Australia; and to the promotion of a holder of judicial office, on the basis that judges should have nothing to hope for and nothing to fear from any government. The Leader of the Opposition in the federal parliament, Mr (later Sir) John Latham, took the view that, while the Commonwealth Constitution provided for Federal Executive Councillors to advise the governor-general, there was no constitutional provision that would enable them to advise the King.

With some arguing that the 1926 Imperial Conference prevented the British government from advising the King on the appointment of a governor-general, and others arguing, as Latham did, that the Australian government had no power to do so, it seemed that there was no-one who could advise the King on the appointment. While all this was going on, the King himself was seeking a personal role in the appointment of governors-general, a role which he had not possessed when the British government had been responsible for these appointments, and which he would not have under the changes made by the 1926 Imperial Conference nor under the new arrangements which Australia was proposing to follow. The fact that there were differences between the King and the Australian government over the appointment of Isaacs was by now well known.

Against this background, the 1930 Imperial Conference resolved that, in appointing a governor-general, the King should act on the advice of his ministers in the dominion concerned. It was also resolved that the making of a formal submission should be preceded by informal consultation with the King to allow him the opportunity to express his views on the nomination.

While in London, Scullin had discussions with the British Prime Minister, the King's private secretary, and the King himself. It was clear that the King was unhappy with the prospect of being represented by a local man. The chief concern was that such a person would inevitably be, or would become, involved in local politics, whereas a nominee from Britain would have no such involvement and could stand aloof from all politics in the same way as the King did at home.

Isaacs was called upon several times to exercise constitutional functions in potentially politically troublesome circumstances, but he handled each situation impeccably. He also had to cope with the coming to office of an Opposition which had opposed his appointment. He handled that successfully and set a pattern for future incumbents who would be so placed. His term as the first Australian in the post has been described as one of the most important in the history of the office.

In the words of Dr Christopher Cunneen, then deputy general editor of the Australian Dictionary of Biography and the author of Kings' Men: "As Hopetoun had been the model for Isaacs's predecessors, Isaacs was to set the pattern for subsequent Australian-born governors-general. ... [He] was the forerunner of a series of appointments of Australians which significantly altered the nature of the institution. Prior to Stonehaven the monarchical element in the Australian Constitution, exercised by British officials, was overtly linked with the protection of British interests. The 1926 Imperial Conference removed from the formal structure the justification for this supposition, and the term of office of Isaacs completed the process. When Isaacs passed constitutional judgement in areas of political discretion, he was acting as a local constitutional monarch, not because of any inclination to further the interests of the British government."

Changed status

The 1926 and the 1930 Imperial Conferences changed the status of the vice-regal office and established a new relationship between governors-general and their governments. In Australia we were able to alter our constitutional arrangements to meet evolving constitutional needs, to give effect to the resolutions of the two Imperial Conferences, and to sever all links between the governor-general and the British government, but without having to alter one word of the Constitution itself. These changes are perfect examples of the far-sightedness of our Founding Fathers, and evidence of the adaptability and flexibility of our Constitution.

In 1953, in the course of preparing for the 1954 royal visit to Australia, Prime Minister Robert Menzies had wanted to involve the Queen in some duties of a constitutional nature, in addition to the inevitable public appearances and social occasions. It was proposed, in particular, that the Queen should preside at a meeting of the Federal Executive Council and open a session of the Commonwealth Parliament. As this was the first visit to Australia by a reigning sovereign, it was thought necessary to ensure that it was constitutionally in order for her to carry out these functions, and the Commonwealth Solicitor-General, Sir Kenneth Bailey, was asked for a legal opinion.

In the matter of presiding at a meeting of the Federal Executive Council, the Solicitor-General advised that it would be necessary to arrange the business of the meeting with some care. His view was that such a meeting would not be able to exercise any of the statutory functions conferred on the governor-general in council unless parliament in the meantime were to pass an Act to empower the Queen in council to exercise these functions.

By means of the Royal Powers Act 1953, parliament did provide that, "when the Queen is personally present in Australia, any power under an Act exercisable by the governor-general may be exercised by the Queen." The Act further provided that the governor-general could continue to exercise any of his statutory powers even while the Queen was in Australia, and in practice governors-general have continued to do so.

In 1975 the Commonwealth Solicitor-General, Mr (later Sir) Maurice Byers, gave Prime Minister Gough Whitlam a legal opinion in which he (the Solicitor-General) concluded that the royal instructions to the governor-general were opposed to the words of the Constitution; that the executive power of the Commonwealth exercisable by the governor-general under Chapter II of the Constitution may not lawfully be the subject of instructions; and that this had been the case since 1901.

The Solicitor-General's first conclusion was that, as the office of governor-general was created by the Constitution, and as the Constitution also prescribed the nature and functions of the office, Queen Victoria's letters patent, as amended from time to time, "were in many, if not most, respects unnecessary."

The Solicitor-General next noted that royal instructions to the governor-general had been issued in 1900, 1902, 1911 and 1920, and he concluded that they were not only anachronistic and unnecessary, but that they were also opposed to the words of the Constitution and therefore unlawful. Sir Maurice Byers went on to advise, in particular, "that the executive power of the Commonwealth exercisable by the governor-general under Chapter II of the Constitution may not lawfully be the subject of instructions" and that his conclusions "do not depend in any respect upon constitutional development since 1901."

The Solicitor-General's opinion also dealt specifically with the widely-held but incorrect view that the governor-general, because of the description of the office as "the Queen's representative", could therefore act only as her representative. "The Constitution binds the Crown. The constitutional prescription is that executive power is exercisable by the governor-general although vested in the Queen. What is exercisable is original executive power: that is, the very thing vested in the Queen by section 61. And it is exercisable by the Queen's representative, not her delegate or agent. The language of sections 2 and 61 had in this respect no contemporary parallel and suggests (as section 61 makes clear) a viceregal status. So much was suggested by Harrison Moore in 1900 ... The same view has also been expressed by the present Chief Justice of Australia more than once ..."

The dismissal of the Whitlam Government on November 11, 1975, two months after the Prime Minister had received the Byers opinion, was to provide further evidence in support of all the legal opinions which had been given over the previous 75 years. Writing after the event, Governor-General Sir John Kerr, former Chief Justice of New South Wales, said: "I did not tell the Queen in advance that I intended to exercise these powers on 11 November. I did not ask her approval. The decisions I took were without the Queen's advance knowledge. The reason for this was that I believed, if dismissal action were to be taken, that it could be taken only by me and that it must be done on my sole responsibility. My view was that to inform Her Majesty in advance of what I intended to do, and when, would be to risk involving her in an Australian political and constitutional crisis in relation to which she had no legal powers; and I must not take such a risk."

After the governor-general had withdrawn the Prime Minister's commission, the Speaker of the House of Representatives wrote to the Queen to ask her to restore Whitlam to office as Prime Minister. In the reply from Buckingham Palace, Mr Speaker was told: "As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the governor-general as the representative of the Queen of Australia. The only person competent to commission an Australian Prime Minister is the governor-general, and the Queen has no part in the decisions which the governor-general must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the governor-general by the Constitution Act."

As the defining head of state power, sine qua non, is the power to appoint and remove the Prime Minister, that reply confirmed, if confirmation were needed, that the governor-general is indeed Australia's head of state.

On August 21, 1984, on the advice of Prime Minister Bob Hawke, the Queen revoked Queen Victoria's letters patent relating to the office of governor-general, all previous emending letters patent, and all royal instructions to the governor-general, and issued new letters patent which, in the words of the Prime Minister, would "achieve the objective of modernising the administrative arrangements of the office of governor-general and, at the same time, clarify His Excellency's position under the Constitution."

The new letters patent strengthened the constitutional position of the governor-general by not purporting to create the office, as the original letters patent had done, and by acknowledging the creation of the office by the Australian Constitution. At long last, the royal instructions that should never have been issued in the first place were revoked. No new instructions were issued and none are now in existence. The 1901 views of Clarke and Moore finally were vindicated, and the governor-general was acknowledged to be what in fact he had always been, namely, the holder of an independent office created by the Australian Constitution and not subject to royal, or any other, instructions.

The underlying argument used by those seeking constitutional change to a republic is that the governor-general is not the head of state. This is despite the fact that the occupant of that office is the only person constitutionally able to exercise the powers and functions of the head of state of Australia, including, in particular, the defining head of state power to appoint, and if necessary remove, the Prime Minister. It has never been explained how a president carrying out the duties, powers and functions of the governor-general would be a head of state, but that a governor-general carrying out the very same duties, powers and functions is not a head of state. If such a president would be Australia's head of state, then that is precisely what the governor-general is now. The office of head of state is defined by the duties performed by the occupant of the office, not by the label attached to the occupant.

One of the saddest aspects of the republican debate over the past decade or more has been the fact that, while much of the debate has concentrated on specific provisions in the Constitution, a major tactic has been to try and denigrate the entire document in general. But our Founding Fathers crafted and drafted a better Constitution than they have been credited with. Although they were producing a Constitution for a dominion that was not yet fully independent, they were also drafting a Constitution that would enable Australia to become a fully independent sovereign nation of the world, without one word of the Constitution needing to be altered. In particular, they gave to the governor-general an additional independent constitutional position not given to any other representative of the Crown anywhere else in the British Empire, and sadly it took Australian governments 84 years to realise that fact. Sadder still, most Australians still don't realise it.

Sir David Smith was Official Secretary to five governors-general from 1973 to 1990. He is currently a Visiting Scholar in the Faculty of Law at the Australian National University. This article is an edited extract from a submission which he made to the Australian Senate's Legal and Constitutional References Committee. The article first appeared in the July-August 2004 issue of Quadrant.